10

Rule 15: Amended and

Supplemental Pleadings

Key Concepts
•  Amending pleadings once as a matter of course
and thereafter obtaining permission
•  Amending pleadings to add a cause of action
after the statute of limitations for that cause of
action has run
•  Amending pleadings during or after the trial
•  Supplementing pleadings

Introduction
Rule 15 allows a party to amend its pleading after it has been filed
with the court. In keeping with the flexibility of the federal rules,
Rule 15 is generous. The policy is that by allowing the parties to
“fix” their pleadings as they go along, the case will more read-
ily be resolved on the merits. The parties will not waste precious
time and resources squabbling over the mechanics of amending their pleadings.
However, Rule 15’s flexibility must also be balanced with fairness concerns for the
opposing party.

The need to amend generally arises when a party has made an inadvertent omission
or mistake in its pleading. In that case, if the party realizes its mistake fairly quickly,
the amendment will generally be allowed under the rule. But, a party may also
learn of new information and want to amend its pleading to add a new party or
claim accordingly. Whether an amendment is allowed in that situation often turns
on whether the statute of limitations for the underlying action has run. If it has,
the rule requires more complex analysis to determine whether that amendment
will “relate back” to the original date of filing.

• 429 •
• 430 • Learning Civil Procedure •

A. The Rule
Rule 15 has four main sections:

• The first section (15(a)) sets out when and how a party can amend its
pleading before trial.

• The second section (15(b)) allows the parties

to amend the pleadings during and after trial. The statute of limi-
tations is the amount
• The third section (15(c)) prescribes whether of time in which a par-
an amendment to add a new claim or party ticular cause of action
can be brought (See
filed after the statute of limitations has run
Chapter 1 for a de-
will “relate back” (or be deemed to have tailed description).
been filed on the same date as the original
pleading).

• Finally, the fourth section (15(d)) explains when a party can add claims
that arise out of an event that occurred after the original pleading was filed.

B. Rule 15(a): Amendments Before Trial

Rule 15(a) addresses two issues:

• the one and only time a party can amend the complaint without the per-
mission of either the court or the opposing party; and

• how a party can amend a pleading once it has already filed an amendment
under Rule 15(a)(1) or if the time period for filing a Rule 15(a)(1) amend-
ment has passed.

The Rule Rule 15(a)

Amendments Before Trial
(1) Amending as a Matter of Course. A party may amend its pleading
once as a matter of course within:
(A) 21 days after serving it; or
 • 10 • Rule 15: Amended and Supplemental Pleadings • 431 •

(B) if the pleading is one to which a responsive pleading is re-

quired, 21 days after service of a responsive pleading or 21
days after service of a motion under Rule 12(b), (e), or (f),
whichever is earlier.

(2) Other Amendments. In all other cases, a party may amend its
pleading only with the opposing party’s written consent or the
court’s leave. The court should freely give leave when justice so
requires.

EXPLANATION

1. Rule 15(a)(1): Amendments as a Matter of Course

A party wishing to amend its

pleading without permission of Remember Rule 7 (dis-
the court or the opposing party cussed in Chapter 7). It tells
has a limited time in which to us what counts as a “plead-
ing” and what counts as a
do so. This is called amending
“motion.” It is important to
as a “matter of course” or an understand that while there
amendment “as of right.” There are three spe- are three distinct “amend-
cific moments listed in Rule 15(a)(1) in which ment moments,” a party has
a party can amend its pleading as a matter or the right to amend without
course. They are: permission only once. For
example, if a party amends
(a) within 21 days of serving the plead- its pleading within 21 days
of serving that pleading, it
ing;
cannot use Rule 15(a)(1) to
(b) 21 days after a responsive pleading amend again. Instead, it must
seek permission of the court
is served; or
or the opposing party under
Rule 15(a)(2).
(c) 21 days after a Rule 12 motion is
served.

EXAMPLES & ANALYSIS

Example: Paula filed her complaint against Devon on October 1. She

alleged that he negligently ran over her toe with his scooter. Devon did
not file an answer, but instead filed and served a Rule 12(b)(6) motion
• 432 • Learning Civil Procedure •

to dismiss on October 11, arguing that Paula failed to state a claim upon
which relief could be granted. In the meantime, Paula realized that she
also wanted to state a claim against Devon’s brother Dillon. She alleges
that right after Devon ran over her right toe, Dillon ran over her left one.
She would like to file an amended complaint to add Dillon. The statute of
limitations does not run for two more years.

Analysis: Paula has 21 days from the date she was served with Devon’s 12(b)
(6) motion to file her amended complaint under 15(a)(1). This means that
she has to file the complaint adding Dillon as a party by November 1. If she
misses that deadline, she will not be able to file the amendment as a matter of
course under Rule 15(a)(1).

IN PRACTICE
If a plaintiff files an amended complaint under Rule
ESQ. 15(a)(1) while a motion to dismiss is pending, the court
has discretion to “transfer” the motion to the new complaint
(assuming the motion is still responsive to the amended
complaint) or it can require the defendant to file a new motion (if, for
example, resolving the motion in light of the new complaint would cause
confusion or delay). Often, an amended complaint will be filed in response
to issues raised in a pending motion. In that case, the defendant must assess
whether its motion is still viable.

Example: Assume that Paula successfully amended her complaint before

November 1 to add Dillon as party. Dillon filed his answer on November
15, but a few days later he realized that he mistakenly denied an allegation
when he intended to admit it. He filed an amended answer on November
20. Is he allowed to do so without court permission or without Paula’s
consent?

Analysis: Yes. The answer is a pleading, so Rule 15(a)(1)(A) applies. Dillon

has 21 days from serving his answer to amend. And, as a policy matter, this
 • 10 • Rule 15: Amended and Supplemental Pleadings • 433 •

makes sense. His mistake is ministerial and the sooner it is fixed, the better it
is for all parties involved.

Example: Assume again that Paula successfully amended her complaint

before November 1 to add Dillon as a party. After filing that amendment,
Paula realized that she mistakenly listed the wrong street names when de-
scribing where the accident occurred. Can she amend her pleading with-
out permission from the court or the opposing party in order to replace
the wrong street names with the correct ones?

Analysis: No. Paula has already amended her complaint once as a matter
of course under Rule 15(a)(1). Although her proposed amendment is fairly
innocuous, she will have to seek permission to amend under Rule 15(a)(2).

2. Rule 15(a)(2): Amendments by Party Consent or Court Approval

Like Rule 15(a)(1), Rule 15(a)(2) is a generous rule. Even when the amending
party has already amended once under Rule 15(a)(1) (or missed the window to
amend under the same), that party can still amend its pleading as long as the
opposing party consents in writing or the court grants the party leave to amend.

With respect to the first option—obtaining written consent from the opposing
party—the calculus is fairly straightforward. The attorney for the opposing party
should generally agree to the amendment unless doing so would violate the duties
owed to her client. In other words, most reasonable requests for written consent
for an amendment will be given. The attorney for the opposing party will in all
likelihood want to avoid a protracted battle before the judge over a potential
amendment and will often just allow the amendment out of professional courtesy.

However, if the opposing

On appeal, the court’s decision to grant or party will not consent, the
deny the request for an amendment is reviewed amending party must ask for
for abuse of discretion (See Chapter 19 for a dis- the court’s approval. Such a
cussion of standards of review). If the court fails
request should be made by
to explain its ruling, that omission alone could
qualify as an abuse of discretion. motion, with the proposed
amendment attached.
• 434 • Learning Civil Procedure •

The language of Rule 15(a)(2) states that the amendment should be freely allowed
“when justice so requires.” Most courts have interpreted this language to require
them to allow an amendment unless one of the following justifies denial:

(a) undue delay;

(b) bad faith or dilatory motive by the moving party;

(c) repeated failure to cure deficiencies by previous amendments;

(d) undue prejudice to the opposing party; or

(e) futility.

See Foman v. Davis, 371 U.S. 178, 182 (1962) (providing this basic set of factors
for denying an amendment).

EXAMPLES & ANALYSIS

Example: Parachute Corp. filed a complaint against Drexel Corp. in a

breach of contract claim two years ago. In the past two years, the parties
have completed a significant amount of discovery. The parties are set to go
to trial in a month, but Parachute Corp. has asked to amend its complaint
to add an additional claim of tortious interference. Drexel Corp. refused
to consent to the amendment, so Parachute Corp. has sought permission
from the court. Should the court allow the amendment?

Analysis: It depends, but probably not. The court will likely find that
amending a month before trial to add this additional claim would result in
prejudice to Drexel Corp. The court will have to determine whether Drexel
Corp. would have done anything differently over the past two years. In other
words, would it have conducted different discovery had it known of the tor-
tious interference claim? If not, then the court may not find prejudice. But,
if so, then the court will likely deny the motion. The court will also have to
consider whether the new claim added by the amendment would be futile.
Or put a different way, the court will have to determine whether the tortious
interference claim would survive a Rule 12(b)(6) motion to dismiss. If it
would not, then the court could deny the amendment on the basis of futility.
Rule 15(a)(2) does not prescribe a deadline for requesting permission from
the court to amend the pleading. But, the factors to be considered certainly
 • 10 • Rule 15: Amended and Supplemental Pleadings • 435 •

become more pronounced as time wears on. If a request to amend is made

early in the litigation process, it is more difficult for a court to determine
that the party was dilatory or that
there was undue delay. However, if
the request is made later in the pro- While the denial of the request
for amendment is reviewed for
cess, the court may have a harder
abuse of discretion on appeal, a
time avoiding that conclusion. finding that the amendment would
It is worth pointing out, however, have been futile is a legal conclu-
that just because an amendment will sion that is subject to de novo re-
view (See Chapter 19 for a discus-
be bad for the opposing party on the
sion of standards of review).
merits—meaning, an amendment
adding a meritorious claim might be
harder for a defendant to disprove—it does not mean that the court should
not grant leave to amend. Rule 15(a)(2)’s requirement of justice is just that.
As long as the proposed amendment does not prejudice the opposing party’s
preparation, it should be allowed.

IN PRACTICE
While Rule 15(a)(2) does not contain a time limit on
ESQ. amendments to the pleading, the court’s scheduling order
under Rule 16(b) might. If a party attempts to amend its
pleading after the deadline in a Rule 16(b) scheduling
order has run, then the party must meet the requirements of both Rule
15(a)(2) and Rule 16(b)(4) (requiring good cause and the judge’s consent
to modify a Rule 16(b) scheduling order) (See Chapter 11 for a discussion
of scheduling orders).

C. Rule 15(b): Amendments During and After Trial

Rule 15(b) addresses amendments to the pleading during and after trial. Remem-
ber that up to now, we have only been looking at when and how pleadings might
be amended before trial. With Rule 15(b), the rule addresses what to do when an
issue that was not explicitly covered in the pleadings is brought up at trial. This
can happen in two situations. First, when the issue comes up in trial and the op-
posing party objects to the issue as outside the pleadings. Second, when the issue is
• 436 • Learning Civil Procedure •

litigated in trial and neither party has objected to it. In the first situation, the court
must determine whether the opposing party would suffer prejudice from adding
the issue at that time. In the second, the parties and the court will treat the issue
as if it had been properly pleaded from the beginning. However, a party may move
to formally amend the pleading to “conform to the evidence.”

The Rule Rule 15(b)

Amendments During and After Trial
(1) Based on an Objection at Trial. If, at trial, a party objects that
evidence is not within the issues raised in the pleadings, the court
may permit the pleadings to be amended. The court should freely
permit an amendment when doing so will aid in presenting the
merits and the objecting party fails to satisfy the court that the
evidence would prejudice that party’s action or defense on the
merits. The court may grant a continuance to enable the objecting
party to meet the evidence.
(2) For Issues Tried by Consent. When an issue not raised by the
pleadings is tried by the parties’ express or implied consent, it
must be treated in all respects as if raised in the pleadings. A
party may move—at any time, even after judgment—to amend
the pleadings to conform them to the evidence and to raise an
unpleaded issue. But failure to amend does not affect the result of
the trial of that issue.

EXAMPLES & ANALYSIS

Example: Pierre attended a baseball game at Danger Field, home of the

Dangers. At the game, Pierre decided to check the scores of the other games
being played that day on his smart phone. Unfortunately, while Pierre was
looking at his phone, Sam Slugger (a star player for the Dangers) hit a
foul ball that struck Pierre in the face. Pierre decided to sue Danger Field
for negligently failing to have a net to stop foul balls from going into the
stands. He did not include any other claims in his complaint.
 • 10 • Rule 15: Amended and Supplemental Pleadings • 437 •

At trial, Pierre tried to introduce evidence that a Danger Field security

guard told Pierre that he was an idiot for checking his phone during an at-
bat. Pierre moved to amend his complaint to include a claim of intentional
infliction of emotional distress. Danger Field objected. How should the
judge rule?

Analysis: It depends. It is likely that a court would find that the security
guard’s statement will aid in Pierre’s presentation of the merits of both claims.
However, it might also be difficult for Danger Field to adequately defend
against the new claim of intentional infliction of emotional distress. If the
court believes the claim should be added, however, it can lessen the prejudice
that Danger Field might suffer by granting a continuance to give it more time
to prepare.

Example: Dane the Diva wanted to film a music video for her new hit
song, “I’m Rich.” For the video, Dane rented very expensive jewelry from
Polly the Jeweler. Unfortunately, while Dane was wearing the jewelry,
she was robbed at gun point. Polly sued Dane alleging negligence in her
complaint.

Before trial, Polly filed a brief with the court alleging that Dane also could
be found liable for a breach of contract claim because Dane was contractu-
ally bound to return the jewelry. She did not amend the complaint at that
time; it still only alleged negligence. Dane filed a response brief with the
court, saying that she had no such duty to return the jewelry under the
contract, and even if she did, she was excused from performance because
of the extenuating circumstances. The trial ensued, and Dane was found
liable for only the breach of contract claim. After the trial, Polly moved to
amend her complaint to include the breach of contract claim. Should the
court allow Polly to do so?

Analysis: Polly would be permitted to amend her complaint. By responding

to Polly’s brief with arguments disputing her breach of contract theory of
liability, Dane impliedly consented to litigate that issue. Dane treated the
breach of contract claim as if it was in the complaint. Assuming the court
found that the issue was tried by implied consent, it must treat the issue as
having been raised in the pleading under Rule 15(b)(2). Thus, Polly may
• 438 • Learning Civil Procedure •

amend her complaint to conform to the evidence that was presented in trial
and raise the unpleaded breach of contract issue. Even if the court does not
formally allow the amendment, however, Rule 15(b)(2) ensures that such
failure to amend will not affect the results of the trial.

D. Rule 15(c): Relation Back of Amendments

This rule comes into play when a
party wants to either add a new claim When a party seeks to amend
against an existing party or a new claim his pleadings and wants the amend-
against a new party to a pleading, but ment to relate back, he technically
the statute of limitations has run on makes the request under Rule 15(a)
(2)—he seeks the consent of the court
that claim. It is key to remember that
to amend the pleadings. He also uses
this rule only arises when the statute of Rule 15(c) to argue that the amend-
limitations has expired. If a party is try- ment is allowed because it relates
ing to amend a pleading and the stat- back under that rule. In other words,
ute of limitations on the action has not the court will generally only consent
yet run, then the party should use only to the amendment under Rule 15(a)
(2) if it relates back under Rule 15(c).
Rule 15(a) or (b) as discussed above.
The same is true for amendments un-
der Rule 15(a)(1), although that situa-
Rule 15(c) often creates confusion for
tion is less common.
courts and students alike. But, it need
not be that way. In short, Rule 15(c)
creates a legal fiction. If a party satisfies the rule, then the court and the parties act
as if the new party or claim has been there since the date the pleading was originally
filed and thus before the statute of limitations ran. That is why the amendment
is said to “relate back.” Because such a legal fiction could potentially be unfair to
either the existing parties (if a new claim is added) or to the new party (if she has
just been added), the rule is drafted to have a fairly narrow application.

The rule itself consists of three main sections: (1) a section that defers to the rela-
tion back provisions of the substantive law being used if they are more generous
than the federal rule; (2) a section that explains how a new claim can be added; and
(3) a section that explains how a claim against a new party can be added.
 • 10 • Rule 15: Amended and Supplemental Pleadings • 439 •

The Rule Rule 15(c)(1)(A)

Relation Back of Amendments
(1) When an Amendment Relates Back. An amendment to a pleading
relates back to the date of the original pleading when:
(A) the law that provides the applicable statute of limitations al-
lows relation back; . . . .

1. Relation Back Under the Applicable Law’s Statute of Limitations

The first section is often overlooked by attorneys. It allows the party to use the
relation-back provisions of the substantive law. This means, for example, that if
the underlying limitations rule allows for relation back of an amendment that is
more generous than Rules 15(c)(1)(B) or (C), then the party can use that law to
amend her pleading and relate her new claim back to the original date of filing.
This, of course, only applies if the applicable law includes a provision that governs
relation back.

2. Relation Back When Adding a Claim

The Rule Rule 15(c)(1)(B)

Relation Back of Amendments
(1) When an Amendment Re-
lates Back. An amendment to The terminology “transaction
a pleading relates back to the or occurrence” might sound fa-
date of the original pleading miliar. For instance, a version of
this language appeared in Chapter
when: . . .
1 discussing supplemental juris-
(B) the amendment asserts diction (as “case or controversy”).
a claim or defense that While the meaning is not exactly
the same in all of these contexts,
arose out of the con-
it is fairly similar. Where this lan-
duct, transaction, or guage is found in a rule (or case
occurrence set out— law setting forth doctrine), courts
or attempted to be set will make similar inquiries such as
out—in the original whether the parties and evidence
pleading; or . . . . are the same.
• 440 • Learning Civil Procedure •

Assuming that the applicable substantive law does not provide a more generous
relation-back provision, the rule then provides for two different tests depending
on whether the amending party is adding a new claim against an existing party
or whether the amending party is adding a whole new claim and party to the ac-
tion. In the first instance—adding a new claim against an existing party—the rule
requires that the new claim arise out of the same “conduct, transaction, or occur-
rence” that gave rise to the claims in the original pleading. The policy behind this
language is that if the opposing party had notice of the facts that gave rise to a new
claim, she would not suffer prejudice if that claim were added.

EXAMPLES & ANALYSIS

Example: Mr. Pond worked as an industrial engineer for Dooly Inc. for
over thirty years. Pond was shocked last year when he was terminated by
the company. The Dooly executive who terminated Pond explained that
due to some restructuring within the company, there were no longer any
positions for which Pond was qualified. Pond was sorely disappointed and
filed suit against Dooly in federal court. In his complaint, he alleged that
he had been terminated in violation of the Age Discrimination in Employ-
ment Act. His factual allegations explained that he was terminated solely
because he was over 50 years of age, not because he was unqualified for
any positions in the company. Two years after filing his complaint, Pond
sought leave to amend his complaint to add a tort claim. He alleged that
in the ten years leading up to his termination, he had eaten lunch daily in
the Dooly Inc. cafeteria. He alleged that he developed food allergies from
the spoiled food he ate there. There is a two-year statute of limitations on
a tort claim, and that time has passed. Can Pond’s amendment relate back?

Analysis: Probably not. Rule 15(c)(1)(B) requires that the new claim arise
out of the same conduct, transaction, or occurrence set out in the original
pleading. Here, Pond only originally alleged that he was terminated because
of his age. In essence, that allegation covered only the day he was actually
terminated. There were no allegations made about the time leading up to his
termination when the allegedly defective food was served. From the perspec-
tive of Dooly, it would not have been on notice of this potential tort claim
from the allegations supporting Pond’s age discrimination claims. The alleged
tort occurred at different times and involved different transactions and occur-
rences than the alleged act of age discrimination. So, it is unlikely that a court
 • 10 • Rule 15: Amended and Supplemental Pleadings • 441 •

would find that the tort claim arose out of the same conduct, transaction,
or occurrence as the age discrimination claim. Thus, the amendment would
not relate back (and a court might deny a motion for leave to amend on that
ground alone).

3. Relation Back When Adding a Party

The Rule Rule 15(c)(1)(C)

Relation Back of Amendments
(1) When an Amendment Relates Back. An amendment to a pleading
relates back to the date of the original pleading when: . . . 
(C) the amendment changes the party or the naming of the par-
ty against whom a claim is asserted, if Rule 15(c)(1)(B) is
satisfied and if, within the period provided by Rule 4(m) for
serving the summons and complaint, the party to be brought
in by amendment:

(i) received such notice of the action that it will not be

prejudiced in defending on the merits; and

(ii) knew or should have known that the action would have
been brought against it, but for a mistake concerning
the proper party’s identity.

Statutes of limitations exist to ensure that a claim is brought in a timely manner

and thus resolved when the evidence is most reliable. Statutes of limitations also
provide finality and protect defendants from stale claims. This policy clashes with
the liberality of amending pleadings under the federal rules. In the section govern-
ing how new parties are added, the rule attempts to strike a balance between these
two policies. A claim against a new party will only relate back when three distinct
requirements are met.

• First, the new claim must arise out of the same conduct, transaction or
occurrence as set out in the original pleading.
• 442 • Learning Civil Procedure •

• Second, the new party must have received notice of the action such that
it would not suffer prejudice in defending against that claim. This notice
must have been received within the period provided under Rule 4(m) for
serving the summons and complaint.

• Finally, the new party must have known (or should have known) within
the period provided under Rule 4(m) that it would have been named as a
defendant in the suit were it not for a mistake. All of these requirements
combine to make it difficult to add a new party when doing so would be
unfair.

Under Rule 4(m), the plaintiff generally has 90 days from the date of filing
the complaint to serve the summons, although that time is subject to exten-
sion at the discretion of the court. Any extension granted in a particular case
will apply to how Rule 15(c) is applied to a new defendant. In other words, if
existing defendants in the action received notice within 120 days because the
court granted an extension under Rule 4(m), then a new defendant’s window
of notice will similarly be 120 days under Rule 15(c).

EXAMPLES & ANALYSIS

Example: Louise Shaffer was appointed to the position of Secretary of

Labor by the President. She was a former executive at Pestin Construc-
tion, a large construction company in the state of New Jersey. While Shaf-
fer awaited Senate confirmation of her appointment, Dollars Magazine
ran a scathing article about her qualifications. In that same article, the
author insinuated that both Shaffer and Pestin Construction had links to
organized crime. Company president George Pestin was outraged at this
article, but he did not act immediately to respond. He eventually decided
that he wanted to take action, however, so ten days before the statute of
limitations ran on his alleged libel claim, he filed a complaint against Dol-
lars Magazine. The complaint listed Dollars Magazine as the defendant,
with its principal place of business in the Dime and Nickel Building in
New York. The summons and complaint were served on Dollars Maga-
zine’s registered agent within 90 days of filing the complaint under Rule
4(m). Pestin quickly discovered, however, that he had sued the wrong en-
tity. Dollars was only a trademark of Dime, Inc.—it was not a separate
entity. In order for the suit to go forward, Pestin needed to sue Dime, Inc.
 • 10 • Rule 15: Amended and Supplemental Pleadings • 443 •

However, the statute of limitations for the libel action had already run by
the time he made this discovery.

Consider the requirements of Rule 15(c)(1)(C). Does the libel claim

against Dime Inc. arise out of the same conduct, transaction, or occur-
rence that was set out in the original complaint?

Analysis: Yes. The libel action is the same. The only thing that is changing is
that a new party is being added. Thus, the first requirement of relating back
an amendment when adding a new party is met.

Example: Did Dime, Inc. receive notice of the action within the 90-day
period set out in Rule 4(m) such that it will not suffer prejudice in defend-
ing on the merits?

Analysis: Yes. Its registered agent received a copy of the complaint and sum-
mons within the 90-day period set out in Rule 4(m). Thus, it received notice
and would not suffer prejudice in defending against the action. It is worth
noting, however, that there are limited factual situations where a new party
would have had the notice required under this part of the rule. The kind of
notice required can vary between courts and in all cases is heavily reliant on
the inquiry into prejudice. In some courts, the notice must be actual (from
the complaint itself ) while in others the notice can be constructive (meaning,
in some cases, that knowledge of the incidents that gave rise to the claims
may be sufficient). Some courts have also held that knowledge of the claim
can be imputed. What this means in practice is that there is a narrow category
of situations where the notice requirement will be met. The first is where the
party that was properly served with the complaint and the proposed new
party share an “identity of interest,” meaning generally that the parties are so
related in their business interests that they are essentially one and the same. A
parent and its wholly-owned subsidiary are often found to share an identity of
interest. The second is when the parties share an attorney. In some situations,
the knowledge of the complaint will be imputed to the new party if two
parties share legal counsel.

Example: Should Dime, Inc. have known that but for a mistake it would
have been named as a defendant?
• 444 • Learning Civil Procedure •

Analysis: Probably yes. Dime knew that Dollars was its trademark, and from
the allegations in the complaint, it was clear that Pestin intended to sue Dime
for libel. In other words, Dime knew or should have known that Pestin meant
to sue it, especially since it knew that Dollars was not an entity against which
one could file suit. It was not as if Pestin knew that both Dime, Inc. and
Dollars were entities and chose strategically to sue one over the other. That
would not be a mistake; it would be a strategic choice. The difference between
a mistake and a strategic choice is certainly a fuzzy line and one that is some-
times difficult to determine. Courts do not always agree, but the general
consensus is that when a party intended to sue another party, but failed to
recognize a technical distinction be-
tween entities, that is a mistake. In the actual case upon which
Where a party understood those this illustration is modeled, rela-
technical distinctions, but chose to tion back of amendment was not
sue one party instead of the other, permitted. See Schiavone v. For-
tune, 477 U.S. 21 (1986). This is
that is not a mistake. Finally, most
because Rule 15(c) was differently
courts have held that simple lack of worded at the time of Schiavone.
knowledge is not a mistake. This Perception that the actual Schia-
means that when a party sues “John vone result was unjust fueled re-
Doe” defendants, it will not be able consideration of the Rule, which
to relate an amendment back to add was changed pursuant to the
procedures set forth in the Rules
the proper defendant after the statute
Enabling Act—28 U.S.C. § 2072).
of limitations has run. That is consid- (See Unit Overview, discussing the
ered to be a lack of knowledge, not a rulemaking process)
mistake under the rule.

IN PRACTICE
As previously noted, state rules of civil procedure are often
ESQ. nearly the same as their federal counterparts. But not
always. In general, it appears that the text, numbering, and
organization of the civil rules in about half the states are
almost completely identical to the Federal Rules. In most of the other states,
the concepts and basic ground rules are very similar, but the nomenclature
and numbering of the state rules differs from the federal model. In a small
number of states, there can be significant divergence between state practice
and its federal counterpart.
 • 10 • Rule 15: Amended and Supplemental Pleadings • 445 •

E. Rule 15(d): Supplemental Pleadings

Rule 15(d) allows parties to add claims or defenses to their original pleading to
address facts that have arisen after the date the original complaint was filed. This is
the important distinction between amended and supplemental pleadings. Amend-
ed pleadings allow the party to add claims, parties, or defenses based on facts that
occurred before the original pleading was filed. Supplemental pleadings allow the
party to add claims or defenses based on facts that occurred after the original plead-
ing was filed. Courts have discretion to allow a party to supplement its pleading,
and the inquiry is very similar to that in Rule 15(a)(2).

The Rule Rule 15(d)

Supplemental Pleadings
(d) Supplemental Pleadings. On motion and reasonable notice, the
court may, on just terms, permit a party to serve a supplemental
pleading setting out any transaction, occurrence, or event that
happened after the date of the pleading to be supplemented . . . .

EXAMPLES & ANALYSIS

Example: Ellen Piza has filed a suit alleging that she suffered gender dis-
crimination while working for her employer, Dawn Co. Piza’s complaint
alleged that her supervisor berated her with sexist slurs, that the company
knew about it, and that the company did not do anything to stop this be-
havior. She filed her complaint a year ago, but she has continued to work
at Dawn Co. during the litigation. Since filing her complaint, however,
she has been demoted from her position and has been transferred to a
less-prestigious division of Dawn Co. She would like to add a claim of
retaliation to her claims against Dawn Co. Can she do so?

Analysis: Yes, she probably can. As long as the court is assured that Dawn
Co. will have an opportunity to prepare its defense to these new claims, it will
allow the supplemental pleading to be filed. The new claims are absolutely
related to the claims in the original pleading, and there is no evidence that
Piza delayed bringing these additional claims. They simply arose after her
original complaint was filed.
• 446 • Learning Civil Procedure •

ADDITIONAL EXERCISES

1.  Panera files a complaint against Dark Airways, a national airline, in a diver-
sity action. He amends the complaint once under Rule 15(a)(1) to change
the defendant’s name. In the complaint, Panera alleges that he injured his
ankle while returning to his seat during extreme turbulence on a flight from
San Juan, Puerto Rico, to Philadelphia, Pennsylvania. Dark Airways oper-
ated the flight. Panera attributes his injury to Dark Airways’ negligence
in failing to warn passengers of the impending turbulence. Panera’s claim
against Dark Airways is based on state law negligence. However, after his
lawyer does further research, he quickly realizes that Panera cannot bring
a state law negligence claim against a national airline because that claim is
preempted by federal law. He must instead bring a claim under the Federal
Aviation Administration’s Air Traffic and General Operating Rules. Can
Panera amend his complaint to make this change?

2.  Phillip Pry was convicted for failing to pay a parking ticket issued 5 years
ago and was sent to Dew City State Prison to serve his time. Pry files a
complaint alleging numerous violations of his constitutional rights by prison
staff. Specifically, he alleges violations of his First Amendment right of ac-
cess to the courts, freedom of speech and exercise of religion; the Eighth
Amendment right to be free from cruel and unusual punishment; and the
Fourteenth Amendment right to procedural due process. Pry seeks declara-
tory and injunctive relief as well as awards of compensatory and punitive
damages against the Dew City State Prison System. The court has already
granted Pry leave to amend his complaint twice in the face of motions to
dismiss by Dew City. Pry would like to amend his complaint a third time
with information that he believes will help his case survive. Dew City has
filed a Rule 12(b)(6) motion to dismiss the case stating that Pry’s proposed
amended complaint still fails to state a claim. Should the court allow Pry
to file a third amended complaint?

3.  On April 9, 2017, Field Agent Ray Pillette filed a claim seeking to recover
damages from his employer Dalton Industries. Pillette alleges Dalton dis-
criminated against him under the Americans with Disabilities Act (ADA)
after he was confined to a wheelchair from injuries stemming from a space
shuttle crash. Pillette was fired from his job on May 3, 2015. Prior to being
fired, his supervisor at Dalton removed him from fieldwork and did not give
him a reason as to why. Pillette believed it is because of his disability. Dalton
 • 10 • Rule 15: Amended and Supplemental Pleadings • 447 •

argued that Ray’s claim under the ADA fails because he was not “qualified”
under the ADA and additionally was not fired because of a disability. On
August 23, 2015, Pillette learned he could have received accommodations
under the Family and Medical Leave Act (FMLA). Dalton did not believe
Pillette qualified for FMLA so it did not inform him of the accommoda-
tions. The statutes of limitations for ADA and FMLA claims are two years.
Pillette filed his ADA claim in time, but his FMLA claim is beyond the
two-year statute of limitations. Will Pillette’s FMLA claim relate back?

4.  Polly, a city transit employee who was a member of the Local 180 Transit
Union, believed the union discriminated against her in the last round of
salary negotiations. Right before the statute of limitations on her claim ex-
pired, Polly filed suit against the Global Transit Union (GTU). GTU is the
national organization for the Local 180 Transit Union. Polly served GTU at
its headquarters in Washington D.C. A week later, Polly sent a letter to the
Local 180 explaining that she planned to file charges against Local 180 as
well. Local 180 retained Mark Doffa to represent it. Shortly thereafter, GTU
also retained Doffa. In answering the complaint, Doffa asserted that GTU
and Local 180 were two distinct entities and that GTU was not the prop-
er defendant in Polly’s case. Polly sought to amend her complaint against
GTU to replace GTU with Local 180 as the defendant. Polly stated she had
named the wrong defendant and was seeking to name the correct defendant
under Rule 15(c). Doffa contended that Polly chose to sue GTU instead of
the Local 180 and sought to have the complaint dismissed. Doffa asserted
that the statute of limitations on Polly’s claims had run and that under Rule
15(c), Polly’s amendment did not relate back to her original claim. Will
Polly’s amendment to replace GTU with Local 180 relate back?

5.  Parker filed a tort claim for negligence and product liability against his
employer, International Delivery Packages (IDP), a package facility based
in Kentucky. Parker’s right arm was amputated after it became caught be-
tween two rollers while he was trying to clear an obstruction off a conveyor
belt. Parker’s complaint names as defendants IDP, D-Convey, the conveyor
belt manufacturer, and Delta Co., the manufacturer of the rollers on the
conveyor belt machinery. The statute of limitations for filing a negligence
or product liability claim is two years. Parker filed his complaint right be-
fore the statute of limitations ran out. During discovery, Parker discovered
another manufacturer of the rollers, Dodin Corp. Even though the statute
of limitations on the negligence and product liability claims against Dodin
Corp. have run, Parker hopes to amend his complaint to add Dodin Corp.
• 448 • Learning Civil Procedure •

and ask that the claims relate back. If the court allows Parker to amend,
will the claims against Dodin Corp relate back?

6.  Paloma, a protester, filed a claim against Agent Morgan, a Secret Service
Officer and another agent, who he could not identify, so named as “Jane
Doe.” The claim alleges a violation of Paloma’s right to freedom of expres-
sion under the First Amendment. Paloma filed his claim right before the
statute of limitations ran and served Agent Morgan with the complaint. He
later learned the identity of Agent Jane Doe and has moved under Rule 15
to amend his complaint to add the actual name of the agent as a defendant.
The statute of limitations on his claim has run. If the court allows Paloma
to amend his complaint, will the claim against the new defendant relate
back?

7.  A Hypothetical—Exam Practice. A hypothetical like one you might see on

a law school or bar exam will be made available to you. Assume that you are
taking such an exam and answer the following question in the time frame
provided: After it realized that it had not manufactured the slide that injured
Peck, Dippyslide moved for leave to amend its answer to deny manufacture
of the slide. Assume that you are the judge presiding over this case. Should
the court allow Dippyslide to amend its answer?

8.  A Hypothetical—Exam Practice. A hypothetical like one you might see

on a law school or bar exam will be made available to you. Assume that
you are taking such an exam and answer the following question in the time
frame provided: After being properly served, DelagoCrociere, represented by
Rob Stone (the same attorney that represented Delago Cruises), moved to
dismiss because the statute of limitations had run and therefore DelagoCro-
ciere could not be properly joined. After firing the attorney who originally
suggested she could sue Delago Cruises, Panda has now hired you as her
lawyer. Can you defeat DelagoCrociere’s motion to dismiss by arguing
that DelagoCrociere can be added to her complaint under Rule 15?
 • 10 • Rule 15: Amended and Supplemental Pleadings • 449 •

Quick Summary

•   ule 15 is an excellent example of how the federal

R
rules provide parties with the necessary flexibility
to pursue their claims.
•   hen a party acts within a specified time frame,
W
it is free to amend its pleading once as a matter of
course under Rule 15(a)(1).
•  Even if it misses this deadline or even if it has already filed an amend-
ment, it can still generally amend under Rule 15(a)(2). Either the
opposing party or the court, in its discretion, can allow the amend-
ment under this provision. Assuming the amendment is not futile, and
assuming the party is not engaging in gamesmanship, the amendment
will generally be allowed.
•  Under Rule 15(b), when an issue comes up in trial and the opposing
party objects to allowing an amendment to the pleading, the court will
allow the amendment if the opposing party would not suffer prejudice.
Or, if the issue is litigated in trial and neither party has objected to it,
the parties and the court will treat the issue as if it had been properly
pled since the beginning.
•  When the statute of limitations has run, the rule attempts to balance
the need for flexibility under the federal rules with the policy of fair-
ness and repose that underlies statutes of limitations.
•  Finally, when facts arise after a complaint has been filed, a party may
seek to supplement her pleading. The court has discretion as to whether
that supplemental filing should be allowed.

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